Christie Blatchford: Sweeping access to computers in premier's office was unprecedented, gas plant trial toldA second witness has testified that it was David Nicholl, Ontario’s chief IT officer, who asked for the sweeping access given to David Livingston’s executive assistant

Christie Blatchford
October 26, 2017
6:33 PM EDT

TORONTO — A second witness at the gas plants trial has testified that it was David Nicholl, Ontario’s chief information technology officer, who asked for the sweeping access given to David Livingston’s executive assistant.

Now retired from the public service, Thomas Stenson was testifying at the criminal trial of Livingston and Laura Miller, once the power duo in the office of former Ontario premier Dalton McGuinty.

The two are pleading not guilty to charges that stem from their alleged destruction of data and wiping of computer hard drives in McGuinty’s office in January and February of 2013, when McGuinty and his staff were about to leave Queen’s Park and new Premier Kathleen Wynne and hers were moving in.

Prosecutors allege the two deliberately destroyed documents relating to the McGuinty government’s billion-dollar decision in 2010 and 2011 to cancel two gas-fired power plants in Mississauga and Oakville.

The cancellations were enormously controversial — especially since one plant was cancelled in the middle of the 2011 election — and prompted howls of outrage from the Opposition parties and the grilling of officials by two Legislative committees, which had demanded documents from the then-energy minister Chris Bentley and his staff.

Livingston and Miller were respectively McGuinty’s chief of staff and deputy chief of staff.

Stenson was manager of the IT support for those in the former premier’s office and Cabinet office, jointly called POCO.

He testified, as did the witness before him, POCO tech team lead Rolf Gitt, about a meeting Nicholl called on Jan. 30 that year where he asked for a “global administrator’s access” to all the computers in McGuinty’s office.

As Stenson put it, “This one account would have access across all 70 or 80 computers in the premier’s office.”

He said he’d “never had this type of request before in all my years working for the Ontario government,” and that as far as he knew, such sweeping access had never been approved for “anyone but IT before.”

Administrative access, also known as administrative rights, allows a user “access to (other people’s) data they would never normally be able to access,” Stenson said. “You could sit down at any computer in the premier’s office, log in with that account and have access to all files.”

The access, he said, was ultimately granted to Wendy Wai, the executive assistant to Livingston — a person Stenson said he knew didn’t have “even modest technical skills.”

Prosecutors allege that the access was in fact handed over to Peter Faist, Miller’s “life partner,” who did the actual wiping, using a software data erasure program called White Canyon, of about 20 computers. He was neither an Ontario government employee nor a security-checked contractor.

Stenson and Gitt are both long-time public servants, with no obvious axe to grind, and their testimony contrasts sharply with what Nicholl (who is still Gitt’s boss) has testified at the trial.

Nicholl said he requested merely ordinary administrative access, such as a handful of others in McGuinty’s office already had, and that appears to be how he presented the issue to his then-boss, Peter Wallace, the Secretary of Cabinet and the province’s most senior civil servant.

It looks to me like lots of these people knew that the precedents, if not the rules were being broken. Nobody wants to take responsiblity for being responsible for the password. The IT guy must be operating under instructions. It ends up in the lap of some unlikely perp, a techno-peasant who hardly knows what a c prompt is. It's what bureacrats do instinctively -- they dilute responsibility so that nobody is really responsible for anything.

( the accused big budget lawyers have been trying desperately to get this case thrown out of court before the judge can come to any sort of verdict , but he has decided the case can continue )

Judge rules gas plants trial can continue

A judge has ruled that a trial involving two former senior political aides will continue.

Colin Perkel, The Canadian Press
Published Thursday, November 9, 2017 9:51AM EST
Last Updated Thursday, November 9, 2017 5:45PM EST

TORONTO -- Some evidence exists that could ultimately lead to the conviction of two former senior political aides accused of illegally destroying documents related to an Ontario government decision to cancel two gas plants in 2011, a judge ruled Thursday.

In rejecting defence arguments that the prosecution had no case at all against David Livingston and his deputy Laura Miller, Ontario court Judge Timothy Lipson said the trial should proceed.

At issue in the interim ruling, the judge said, was not whether the Crown's case was weak but whether it had any case at all.

David Livingston, Laura Miller, gas plants trial
David Livingston, chief of staff to former Ontario premier Dalton McGuinty, and Laura Miller, deputy chief of staff to McGuinty, arrive at court in Toronto. THE CANADIAN PRESS/Colin Perkel

"At this stage, it is not the court's function to weigh the evidence, nor to test its quality or reliability," Lipson said. "I am not entitled to make findings of fact, nor to engage in an assessment of the evidence with a view to determining the guilt or innocence of the defendants."

Lipson stressed his task was to determine only whether evidence existed to support the prosecution's case, and that any finding of guilt would ultimately depend on the Crown proving guilt beyond a reasonable doubt.

Livingston, chief of staff to former Liberal premier Dalton McGuinty, and his deputy Miller, had pleaded not guilty to deliberately and illegally destroying documents in 2012 and 2013 related to the government's contentious decision to cancel and relocate two gas plants before the 2011 election at a cost of more than $1 billion to taxpayers.

Lipson noted the decision "dominated political discussion" at the legislature in 2012 and 2013 and that the opposition and others were hunting for information.

Livingston was clearly alive to those information requests, and at one point instructed staff in the premier's office about "double deleting" emails, Lipson said. The duo also engaged Miller's partner, Peter Faist, to wipe computer hard drives in the office.

Faist was not a member of the civil service and had no security clearance. He was paid $10,000 by the Liberal party rather than going through a normal procurement process, and admitted he indiscriminately wiped data from 20 drives.

Lipson did agree with the defence on the absence of evidence to show that any emails or other documents the pair deleted had to be kept in light of freedom of information or legislature committee requests for the data.

Concluding the deleted files or emails were in fact relevant to the prosecution's case would at best amount to an impermissible "educated guess," Lipson said. As a result, he allowed the defence's directed acquittal application in part -- downgrading the charge they had committed mischief to data to one of having attempted to commit mischief.

However, the judge also found it would be reasonable to conclude the accused knew the drives had records that should have been retained.

Lipson also allowed a charge of unauthorized use of a computer to proceed.

He noted senior bureaucrats fretted that records related to the gas plants would be destroyed but the accused proceeded to have Faist wipe them anyway. A reasonable observer, the judge said, could conclude the duo fraudulently obtained the administrative rights Faist needed to carry out the hard drive wiping and concealed what they planned to do.

Lipson said he had considered various defence explanations for what happened, but said that didn't mean the Crown had no case.

The prosecution had already conceded that a third charge on breach of trust could not succeed, and Lipson acquitted the accused on that count.

Following Lipson's ruling, the defence said it had not decided on next steps, including whether to now call evidence. However, Brian Gover, who represents Livingston, credited the directed acquittal application for the prosecution's decision to drop the one charge.

"The breach of trust charge carried with it a greater stigma because it included that element of a corrupt purpose," Gover said. "That's no longer on the table."

More laughable decisions by our supine courts. Does anyone genuinely believe that these people didn't wipe the hard drives clean on instructions from their political masters? The rules had to be amended in order for it to go ahead. Does anyone now believe they will be found guily? Of course they had a "corrupt purpose" -- to hide the truth from the electorate.

With Ontario Court Judge Timothy Lipson ruling Thursday that the trial of two senior political aides to former Ontario premier Dalton McGuinty in connection with the gas plants scandal will continue, some perspective is in order.

Whether David Livingston and Laura Miller are guilty on the remaining charges they face of attempting to commit mischief (which Lipson downgraded from mischief) and illegal use of a computer, regarding the destruction of government documents, is the judge’s decision.

The Crown previously withdrew the most serious charge — breach of trust — saying there was no reasonable prospect of conviction.

Judge Lipson rejected a defence motion calling for a directed verdict on the remaining charges — similar to what happened in the Sudbury by-election bribery trial.

In that case, the defence motion was successful.

Judge Howard Borenstein acquitted two prominent Ontario Liberals, Pat Sorbara, at the time a top aide to Premier Kathleen Wynne, and Gerry Lougheed, a Liberal fundraiser.

In this case, Judge Lipson rejected the defence motion.

He said there’s enough evidence to suggest it’s possible the defendants are guilty of the charges.

This doesn’t mean Livingston and Miller will automatically be convicted, just that the case against them can proceed.

That said, Ontarians have a right to expect a higher standard of conduct from their government than that senior Ontario Liberals are not convicted of breaking the law.

The standard of proof in these trials, where the liberty of the accused is at stake — “proof beyond a reasonable doubt” — is rightly set high to protect the innocent.

But it in no way, including in the absence of convictions, prevents anyone from having and expressing an opinion about how our Liberal government behaved in both these cases.

In our view, the actions of Ontario’s Liberal government over two administrations pertaining to the gas plants and Sudbury by-election controversies were appalling.

They were the antithesis of every promise the Liberals made in their 14 years in power to run an open and transparent government, and to spend our money wisely and judiciously.

The guilt or innocence of the accused is up to the courts.

Whether what the Liberals did was wrong is up to the public to decide, and we will all get to deliver our verdict in the June election.

They will prosecute and destroy people like Jian Ghomeshi on the unsupported testimony of some women but they will find a loophole to avoid putting limits on the criminal conspiracy that now controls the government of Ontario.

And the liars and perjurers who charge people like Ghomeshi and Elliott walk away free. The courts become a tool in the unjust yearnings for feminine revenge.

More laughable decisions by our supine courts. Does anyone genuinely believe that these people didn't wipe the hard drives clean on instructions from their political masters? The rules had to be amended in order for it to go ahead. Does anyone now believe they will be found guily? Of course they had a "corrupt purpose" -- to hide the truth from the electorate.

This stinks.

well I think that was partly what the judge based his decision on , even though evidence is lacking . the simple fact they deleted the computer hard rives to begin with is enough to proceed with the trial .

it simple doesn't make sense to go to all that trouble of wiping so maybe computers clean if there wasn't something on them they didn't want the opposition and public to see

I hope this is the end of the defenses endless attempts at trying to end this trial and they allow the judge to finish hearing all the evidence and make a verdict at some point

It's probably a radical idea, but nobody deserves respect when they screw up like this. The whole administration of justice in Ontario is so in the bag of government that they let government people literally mow citizens down in the street. (Michael Bryant.) They are now prosecuting 'sex crimes' that are based on changing definitions that happen behind the walls of the bureaucracy. (The criterion for a sex crime now has gone from respecting "No means No" to "Affirmative consent" -- which means a man can go to jail for behaviour that was never a legal matter before, and without Parliament changing anything.)

It's now borderline crime to offend a woman. It comes down to that. Check the criminal code definition of sexual harassment if you don't believe me. The courts have done it.

A so-called administration of justice that responds to pressure groups in the population rather than enforcing the law is corrupt. Or decadent. It's a problem.

With Ontario Court Judge Timothy Lipson ruling Thursday that the trial of two senior political aides to former Ontario premier Dalton McGuinty in connection with the gas plants scandal will continue, some perspective is in order.

Whether David Livingston and Laura Miller are guilty on the remaining charges they face of attempting to commit mischief (which Lipson downgraded from mischief) and illegal use of a computer, regarding the destruction of government documents, is the judge’s decision.

The Crown previously withdrew the most serious charge — breach of trust — saying there was no reasonable prospect of conviction.

Judge Lipson rejected a defence motion calling for a directed verdict on the remaining charges — similar to what happened in the Sudbury by-election bribery trial.

In that case, the defence motion was successful.

Judge Howard Borenstein acquitted two prominent Ontario Liberals, Pat Sorbara, at the time a top aide to Premier Kathleen Wynne, and Gerry Lougheed, a Liberal fundraiser.

In this case, Judge Lipson rejected the defence motion.

He said there’s enough evidence to suggest it’s possible the defendants are guilty of the charges.

This doesn’t mean Livingston and Miller will automatically be convicted, just that the case against them can proceed.

That said, Ontarians have a right to expect a higher standard of conduct from their government than that senior Ontario Liberals are not convicted of breaking the law.

The standard of proof in these trials, where the liberty of the accused is at stake — “proof beyond a reasonable doubt” — is rightly set high to protect the innocent.

But it in no way, including in the absence of convictions, prevents anyone from having and expressing an opinion about how our Liberal government behaved in both these cases.

In our view, the actions of Ontario’s Liberal government over two administrations pertaining to the gas plants and Sudbury by-election controversies were appalling.

They were the antithesis of every promise the Liberals made in their 14 years in power to run an open and transparent government, and to spend our money wisely and judiciously.

( can we stick a fork in the wynne government and declare it done ? surely no government can survive a guilty charge for destroying evidence before an election , this is clearly proof they knew they were breaking the law back in 2014 , but odd they found the lady charged not guilty ? )

CP24‏Verified account @CP24 · 23m23 minutes ago

BREAKING: McGuinty's former chief of staff David Livingston has been found guilty of attempting to commit mischief and guilty of unauthorized use of a computer in the gas plants trial.

Robert Benzie‏Verified account @robertbenzie · 26m26 minutes ago

BREAKING: Former top Liberal David Livingston found guilty in deleted documents trial. Awaiting verdict on Laura Miller. #onpoli #gasplants

Robert Benzie‏Verified account @robertbenzie · 22m22 minutes ago

To recap, @Dalton_McGuinty's former chief of staff David Livingston found guilty in deleted documents trial. Deputy Laura Miller found not guilty. #onpoli #gasplants

David Livingston leaves court in Toronto, Friday, Jan.19, 2018. Livingston, a former top political aide in Ontario, has been found guilty of illegally destroying documents related to a controversial government decision to cancel two gas plants before a provincial election.THE CANADIAN PRESS/Nathan Denette

McGuinty's deputy chief of staff Laura Miller found not guilty

TORONTO — A former senior Ontario Liberal staffer has been convicted in what the judge called a deliberate “scorched earth” attempt to destroy government emails or records related to cancelled gas plants.

Crown Tom Lemon said he will seek a custodial sentence for David Livingston, the former chief of staff to premier Dalton McGuinty, who was found guilty Friday of attempted mischief to data and unauthorized use of a computer.

Ontario Judge Timothy Lipson dismissed identical charges against Laura Miller, the former deputy chief of staff whose life partner was paid to wipe 20 hard drives in the premier’s office just before McGuinty was replaced by Premier Kathleen Wynne in early 2013.

Laura Miller, deputy chief of staff to former premier Dalton McGuinty, arrives at Ontario court of justice in Toronto on Tuesday, Nov. 7, 2017. THE CANADIAN PRESS/Colin Perkel

Brian Gover, Livingston’s lawyer, said his client was disappointed with the ruling and would be submitting compelling character evidence at a sentencing hearing scheduled for Feb. 26.

“We’re dealing with someone of prior unblemished character with an outstanding career in the business community, time in public service as the chief executive officer of Infrastructure Ontario and a very brief period in the office of the premier — a career as a political staffer of something of about eight months in duration,” Gover said, suggesting a fine or probation would be a more appropriate sentence than jail time.

There was no comment yet on the possibility of an appeal.

In a statement, a spokesperson for Wynne said she introduced a number of measures to strengthen record retention on coming to office.

“This matter involved former staff to the former premier,” the statement says. “We’ve been clear from the start that this is not how anyone in government should operate, and it is not how a premier’s office should operate. “

PC MPP Vic Fedeli, one of the opposition MPPs who pushed the government to reveal the true cost and motive of the gas plant cancellations, said the ruling proves the Ontario Liberal government is mired in corruption.

However, he said no verdict would bring back $1.1 billion that the provincial auditor estimates was lost through the cancellation of signed contracts to build gas plants in Mississauga and Oakville.

NDP MPP Peter Tabuns said the Liberal government will do anything to protect itself “and that was just validated by the guilty verdict today.”

The trial heard Livingston obtained an administrative computer password and that he and Miller arranged to have staff computers wiped clean of all records.

The defence argued that the pair were interested in removing personal emails, like resumes and partisan political party records from the computer – something they were within their rights to do.

An undated photo of Laura Miller and Peter Faist.

In a lengthy and thorough ruling, Lipson said that key staff members in the premier’s office was consumed with the gas plant controversy and protecting the premier, and it stretched credibility to suggest no related records were created.

“All gas plants all the time — the political backdrop is relevant,” the judge said.

At the time, a standing committee and freedom of information requests were demanding all gas plant-related records from staff in the premier’s office, he said.

But Livingston was clearly more interested in deleting emails than he was in following the advice of top bureaucrat Peter Wallace who informed him of his obligation to retain government records, he said.

In dismissing the charges against Miller, Lipson noted there was no evidence presented that proved beyond a reasonable doubt that she had been advised of Wallace’s warning.

The pair’s defence said they wanted to delete emails that were personal in nature, like resumes, and those that referred to Liberal Party matters – both permitted actions.

They argued that the IT staff in the premier’s office was not considered competent to wipe the computers.

Opposition parties at Queen’s Park had contended the government was desperate to wipe out any emails that would show it was more interested in saving key political seats in Mississauga and Oakville than sparing hydro customers and taxpayers the hefty cost of breaking both contracts.

While the trial saw no smoking gun emails, the Crown pointed out that Livingston and Miller went to extraordinary lengths to bring in an outside techie to delete all records on those computers.

Is it crazy to connect the dots to the Prorogue of Parliament in 2012 and the contempt motion leveled against the Energy Minister?

I don't know if the guilty verdict was a surprise , the liberals must of suspected one was coming which was why wynne timed her cabinet shuffle to happen a couple days before the verdict , to give her some positive press before the bad news

the media also went all out to make sure the story wasn't front and centre , was watching some newscasts last night , CTV Toronto didn't air the story until 6:16 ( had an etobicoke murder and gay village murders first ) and then didn't even interview anyone from the opposition in there story
CTV Barrie was even worse , didn't show it until 6:26 ( had a bunch of meaningless stories first , about the weather , epi pens , US shutdown )

is this cause the wynne government is one of the tv networks best customers ? and they don't want to offend them ? the amount of ads for the government running is rather high at the moment
or are they run by liberals ? who intentionally buried the bad news ?

But why is Livingstone guilty and Laura Miller not? Is it the expanding "girl's rules" justice? How else do you imagine Livingstone arranged to have Miller's husband do the actual monkeying-around without her being involved? She was a key part of the crime.

What would Livingstone have done otherwise? Advertised on Craig's List for someone willing to work after hours to illegally destroy government records, while being paid in plain, unmarked bills in a paper bag?

Is it because she's a woman, or because she's a Liberal henchman?

I can't wait for TC to come to her defence. Probably a reiteration of his belief that sitting to pee makes it impossible for one to engage in criminal skullduggery. He should know -- he sits to pee, and figures it's added 10 points to his IQ!

But why is Livingstone guilty and Laura Miller not? Is it the expanding "girl's rules" justice? How else do you imagine Livingstone arranged to have Miller's husband do the actual monkeying-around without her being involved? She was a key part of the crime.

What would Livingstone have done otherwise? Advertised on Craig's List for someone willing to work after hours to illegally destroy government records, while being paid in plain, unmarked bills in a paper bag?

Is it because she's a woman, or because she's a Liberal henchman?

I can't wait for TC to come to her defence. Probably a reiteration of his belief that sitting to pee makes it impossible for one to engage in criminal skullduggery. He should know -- he sits to pee, and figures it's added 10 points to his IQ!

I also find the verdict especially odd , how can one be guilty and other innocent , clearly the judge decided a crime did in fact occur when the computers were wiped , why else find Livingstone guilty ?

also find the 2 charges rather minor , attempting to commit mischief ? had never even heard of such a charge .
unauthorized use of a computer ? also never heard of anyone that high up in government being charged with such an offence

I feel like they missed a charge or 2 ? if they know a criminal act occurred , he should of been charged with something more serious and why was the more serious breach of trust charge dropped earlier in the trial , clearly he broke the law and violated the trust placed in him

Most trials have negotiated verdicts, and the judge doesn't really decide -- (s)he goes along with the deal or (s)he's probably in trouble.

This is a little different because the usual negotiations are taking place during the trial.

In this case, you have a crown who doesn't really want to convict, and a defence lawyer who wants them off, free and clear, and their threat is that will tell the whole story ... possibly soiling the McGuinty and ... yikes ... Gerald Butts.

You put all those factors together and you get something like this.

And remember, in this process, particularly under "girl's rules" justice, motive is a big factor, and who can doubt that senior members of the Liberal machine are unimpeachable in principle motive-wise.

So the Judge is probably telling him/herself that Livingstone made her do it.

The problem is that the judge would look preposterous if (s)he found that they did nothing wrong. But at the same time, they have to offer Livingstone something to keep him quiet.

Trust me, if 'the courts turn a blind eye to their own injunctions being ignored -- as they did at Caledonia -- or accept retired AG's mowing down people in the street -- then you know they don't have anything to do with so-called "justice". They replace it with "just us".

The new problem is the sentence -- which is part of the negotiation. Will they send him to Guelph, to be dressed in denim, and be housed with a mix of drug-addled thieves and untreated mental patients? Forget that. And what bright new future awaits him after this is over? We should watch and see ...

You cannot post new topics in this forumYou cannot reply to topics in this forumYou cannot edit your posts in this forumYou cannot delete your posts in this forumYou cannot vote in polls in this forumYou cannot attach files in this forumYou cannot download files in this forum